provisions and tendency, they appear designed the reserved rights of the States, no express for. These States are as incapable of duplicity grant of them to the general government, havor fraud in their laws, of meaning one thing ing been either proper, or apparently embraced and professing another, as the purest among in the Constitution. So, whether they conflict their accusers; and while legitimate and con- or not indirectly and slightly with some regulastitutional objects are assigned, and means used tions of foreign commere, after the subject which seem adapted to such ends, it is illiberal matter of that commerce touches the soil or to impute other designs, and to construe their waters within the limits of a State, is not perlegislation as of a sinister character, which haps very material, if they do not really relate they never contemplated. Thus, on the face to that commerce, or any other topic within of them, these laws relate exclusively to the the jurisdiction of the general government. regulation of licensed houses and the sales of an article which, especially where retailed in small quantities, is likely to attract together within the State unusual numbers, and encour age idleness, wastefulness, and drunkenness. To mitigate, if not prevent, this last evil was undoubtedly their real design. 627*] *From the first settlement of this country, and in most other nations, ancient or modern, civilized or savage, it has been found useful to discountenance excesses in the use of intoxicating liquor. And without entering here into the question whether legislation may not, on this as other matters, become at times intemperate, and re-act injuriously to the salutary objects sought to be promoted, it is enough to say, under the general aspect of it, that the legislation here is neither novel nor extraordinary, nor apparently designed to promote other ob jects than physical, social, and moral improvement. On the contrary, its tendency clearly is to reduce family expenditures, secure health, lessen pauperism and crime, and co-operate with, rather than counteract, the apparent policy of the general government itself in respect to the disuse of ardent spirit. They aim, then, at a right object. They are calculated to promote it. They are adapted to no other. And no other, or sinister, or improper view can, therefore, either with delicacy or truth, be imputed to them. *As a general rule, the power of a [*628 State over all matters not granted away must be as full in the bays, ports, and harbors within her territory, intra fauces terræ, as on her wharves and shores, or interior soil. And there can be little check on such legislation, beyond the discretion of each State, if we consider the great conservative reserved powers of the States, in their quarantine or health systems, in the regulation of their internal commerce, in their authority over taxation, and, in short, every local measure necessary to protect themselves against persons or things dangerous to their peace and their morals. It is conceded that the States may exclude pestilence, either to the body or mind, shut out the plague or cholera, and, no less, obscene paintings, lottery tickets, and convicts. (Holmes v. Jennison et al., 14 Peters, 568; 9 Wheat., 203; 11 Peters, 133.) How can they be sovereign within their respective spheres, without power to regulate all their internal commerce, as well as police, and direct how, when, and where it shall be conducted in articles intimately connected either with public morals, or public safety, or the public prosperity? (See Vattel, B. 1, ch. 19, secs. 219, 231.) The list of interdicted articles and persons is a long one in most European governments, and, though in some cases not very judicious or liberal, is in others most commendable; and the But I go further on this point than some of exclusion of opium from China is an instance the court, and wish to meet the case in front, well known in Asia, and kindred in its policy. and in its worst bearings. If, as in the view of The introduction and storage of gunpowder in some, these license laws were really in the nat-large quantities is one of those articles long regure of partial or entire prohibitions to sell cer-ulated and forbidden here. (New York v. Miln, tain articles within the limits of a State, as 11 Peters, 102.) Lottery tickets and indecent being dangerous to public health and morals, or were virtual taxes on them as State property in a fair ratio with other taxation, it does not seem to me that their conflict with the Constitution would, by any means, be clear. Taking for granted, till the contrary appears, that the real design in passing them for such purposes is the avowed one, and especially while their provisions are suited to effect the professed object, and nothing beyond that, and do not apply to persons or things, except where within the limits of State territory, they would appear entirely defensible as a matter of right, though prohibiting sales. Whether such laws of the States as to licenses are to be classed as police measures, or as regulations of their internal commerce, or as taxation merely, imposed on local property and local business, and are to be justified by each or by all of them together, is of little consequence, if they are laws which from their nature and object must belong to all sovereign states. Call them by whatever name, if they are necessary to the well-being and independence of all communities, they remain among prints are also a common subject of prohibition almost everywhere. (6 Greenleaf, 412; 4 Blackford, 107; see the tariff of 1842; 5 Stat. at Large, 566, sec. 28.) And why not cards, dice, and other instruments for gaming, when thought necessary to surpress that vice? In short, on what principle but this rests the justification of the States to prohibit gaming itself, wagers, champerty, forestalling-not to speak of the debatable cases of usury, marriage brokage bonds, and many other matters deemed either impolitic or criminal. It might not comport with the usages or laws of nations to impose mere transit duties on articles or men passing through a State, and however resorted to in some places and on some occasions, it is usually illiberal as well as injudicious. (Vattel, B. 8, ch. 10.) And if resorted to here, in respect to the business or imports of citizens of other States, might clearly conflict with some provisions of the Constitu tion conferring on them equal rights, and be a regulation of the commerce between the States, the power over which they have expressly granted to the general government. But the -~ present case is not of that character. Nor would it be, if prohibiting sales within the acknowledged limits of a State, in cases affecting public morals or public health. Nor is there 629*] in this case *any complaint, either by a foreign merchant or foreign nation, that treaties are broken; or by any of our own States or by Congress, that its acts or the Constitution have been violated. There are additional illustrations of such powers, existing on general principles in all independent States, given in Puffendorf, B. 8, ch. 5, sec. 30, as well as in various other writers on national law. And those exercised under what he terms sovereign or transcendental propriety" (sec. 7th), and those which we class under the right of "eminent domain," are recognized in the fifth amendment to the Constitution itself, and go far beyond this. Much more is there an authority to forbid sales, where an authority exists both to seize and destroy the article itself, as is often the case at quarantine. So the power to forbid the sale of things is surely as extensive, and rests on as broad principles of public security and sound morals, as that to exclude persons. And yet who does not know that slaves have been prohibited admittance by many of our States, whether coming from their neighbors or abroad? And which of them cannot forbid their soil from being polluted by incendiaries and felons from any quar ter. Nor is there in my view any power conferred on the general government which has a right to control this matter of internal commerce or police, while it is fairly exercised so as to accomplish a legitimate object, and by means adapted legally and suitably to such end alone. New Hampshire has, for many years, made it penal to bring into her limits paupers even from other States; and this is believed to be a power exercised widely in Europe among independent nations, as well as in this country among the States. (New Hampshire Revised Statutes, Paupers, 140.) It is the undoubted and reserved power of every State here, as a political body, to decide, independent of any provisions made by Congress, though subject not to conflict with any of them when rightful, who shall compose its population, who become its residents, who its citizens, who enjoy the privileges of its laws, and be entitled to their protection and favor, and what kind of property and business it will tolerate and protect. And no one government, or its agents or navigators, possess any right to make another State, against its consent, a penitentiary, or hospital, or poor-house farm for its wretched outcasts, or a receptacle for its poisons to health, and instruments of gambling and debauchery. Indeed, this court has deliberately said: "We entertain no doubt what soever, that the States, in virtue of their general police power, possess full jurisdiction to arrest and restrain runaway slaves, and remove them from their borders, and otherwise to secure themselves against their depredations and evil example, as they certainly may do in cases of idlers, vagabonds, and paupers.' (Prigg v. Pennsylvania, 16 Peters, 625.) 630*] *There may be some doubt whether the general government or each State possesses the prohibitory power, as to persons or property of certain kinds, from coming into the limits of the State. But it must exist somewhere; and it seems to me rather a police power, belonging to the States, and to be exercised in the manner best suited to the tastes and institutions of each, than one anywhere granted or proper to the peculiar duties of the general government. Or, if vested in the latter at all, it is but concurrent. Hence, when the latter prohibited the import of obscene prints in the tariff of 1842, it was a novelty, and was considered by some more properly to be left to the States, as it opened the door to a prohibition, or to prohibitory duties, to many articles by the general government which some States might desire, but others not wish to come in as competitors to their own manufactures. But, as previously shown, to prohibit sales is not the same power, nominally or in substance, as to prohibit imports. Such ex It is possible, that, under our system of double governments over one and the same people, the States cannot prohibit the mere arrival of vessels and cargoes which they may deem dangerous in character to their public peace, or public morals, or general health. This might, perhaps, trench on foreign commerce. Nor can they tax them as imports. This might trench on that part of the Constitution which forbids States to lay duties on imports. But after articles have come within the territorial limits of States, whether on land or water, the destruction itself of what contains disease and death, and the longer continuance of such articles within their limits, or the terms and conditions of their continuance, when conflicting with their legitimate police, or with their power over internal commerce, or with their right of taxation over all persons and property under their protection and jurisdiction, seems one of the first principles of State sovereignty, and indispensable to public safety. traordinary powers, I concede, are to be exercised with caution, and only when necessary or clearly justifiable in emergencies, on sound and constitutional principles; and, if used too often, or indiscreetly, would open a door to much abuse. But the powers seem clearly to exist in the States and ought to remain there; and though, in this instance, they are not used to this extent, but still, as respectable minorities within these three States believe not to be useful, and as some other States do not think deserving imitation, yet they are used as the competent and constitutional power within each has judged to be proper for its own welfare, and as does not appear to be repugnant to any part of the Constitution, or a treaty, or an act of Congress. They must, therefore, not be interfered with by this court, and the more especially as one reason why these powers have been left with the States is, that the subject matter of them is better understood by each State than by the Union; and the policy and opinions and usages of one *State [*631 in relation to some of them may be very unlike those of others, and therefore require a different system of legislation. Where can such a power also be safer lodged than with those public bodies, or States, who are themselves to be the greatest sufferers in interest and character by an improper use of it? If it should happen at any time to be exercised in judicious-erations, on any ground of prerogative or suly, that circumstance would furnish a ground premacy. The exigencies of the social comfor an appeal rather to the intelligence and pact require that such laws be executed before prudence of the State, in respect to its modifi- and above all others. cation or repeal, than an authority for this court, by a writ of error, to interfere with the well considered decision of a State court, and reverse it, and pronounce a State law null and void, merely on that account. Many State laws are such, that their expediency and justice may be doubted widely, and by this tribunal; but this confers no authority on us to nullify them; nor is any such authority, for such a cause, conferred on Congress by any part of the Constitution. The States stand properly on their reserved rights, within their own powers and sovereign. ty, to judge of the expediency and wisdom of their own laws; and while they take care not to violate clearly any portion of the Constitution or statutes of the general government, our duty to that Constitution and laws, and our respect for State rights, must require us not to interfere. Mr. Justice GRIER: It is for this reason that quarantine laws, which protect the public health, compel mere commercial regulations to submit to their con trol. They restrain the liberty of the passen gers, they operate on the ship which is the instrument of commerce, and its officers and crew, the agents of navigation. They seize the infected cargo, and cast it overboard. The soldier and the sailor, though in the service of the government, are arrested, imprisoned, and punished for their offenses against society. Paupers and convicts are refused admission into the country. All these things are done, not from any power which the States assume to regulate commerce or to interfere with the reg ulations of Congress, but because police laws for the preservation of health, prevention of crime, and protection of the public welfare, must of necessity have full and free operation, according to the exigency which requires their interference. It is not necessary for the sake of justifying the State Legislation now under consideration to array the appalling statistics of misery, pauperism, and crime, which have their origin in the use or abuse of ardent spirits. The police power, which is exclusively in the States, is evils, and all measures of restraint or prohibition necessary to effect the purpose are within the scope of that authority. There is no conflict of power, or of legislation, as between the States and the United States; each is acting within its sphere, and for the public good, and if a loss of revenue should accrue to the United States from a diminished consumption of ardent spirits, she will be the gainer a thousandfold in the health, wealth, and happiness of the people. I concur with my brethren in affirming the judgment in this and the preceding cases on the same subject, but for reasons differing some what from those expressed by the other members of the court; and as I concurred mainly with the opinion delivered by Mr. Justice Mc-alone competent to the correction of these great LEAN in the case of Thurlow v. Massachusetts, I had concluded to be silent, and therefore am not prepared to express my views at length. I take this occasion, however, to remark, that the true question presented by these cases, and one which I am not disposed to evade, is, whether the States have a right to prohibit the sale and consumption of an article of commerce which they believe to be pernicious in its effects, and the cause of disease, pauperism, and crime. I do not consider the question of the exclusiveness of the power of Congress to reg ulate commerce as necessarily connected with the decision of this point. It has been frequently decided by this court, "that the powers which relate to merely municipal regulations, or what may more properly be called internal police, are not surrendered by the States, or restrained by the Constitution of the United States; and that consequent ly, in relation to these, the authority of a State is complete, unqualified, and conclusive." Without attempting to define what are the peculiar subjects or limits of this power, it may safely be affirmed, that every law for the restraint and punishment of crime, for the preservation of the public peace, health, and morals, must come within this category. 632*] *As subjects of legislation, they are from their very nature of primary importance; they lie at the foundation of social existence; they are for the protection of life and liberty, and necessarily compel all laws on subjects of secondary importance, which relate only to property, convenience, or luxury, to recede, when they come in conflict or collision, "salus populi suprema lex." If the right to control these subjects be "complete, unqualified, and exclusive" in the State Legislatures, no regulations of secondary importance can supersede or restrain their op ORDER. SAMUEL THURLOW 2. THE COMMONWEALTH This cause came on to be heard on the tran script of the record from the Supreme Judicial Court, holded in and for the County of Essex. in the Commonwealth of Massachusetts, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged *by this court, that the judgment of [*633 the said Supreme Judicial Court in this cause be, and the same is hereby affirmed, with costs. ORDER. JOEL FLETCHER . THE STATE OF RHODE This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Rhode Island and Providence Plantations, holden at Providence, within and for the County of Providence, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be, and the same is hereby affirmed, with costs. ORDER. ANDREW PEIRCE, JUNIOR, AND THOMAS W. PEIRCE. THE STATE OF NEW HAMP SHIRE. This cause came on to be heard on the transcript of the record from the Superior Court of Judicature in and for the First Judicial District of the State of New Hampshire, and was argued by counsel; on consideration whereof, HOWARD 5 it is now here ordered and adjudged by this court, that the judgment of the said Superior Court of Judicature in this cause be, and the same is hereby affirmed, with costs. Aff'g 24 Pick., 374, and 13 N. H., 536. 537, 540, 546, 553, 556-559, 569; 14 How., 575; 22 How., Cited-7 How., 470, 497, 507, 519, 522, 524-526, 534243; 3 Wall., 730; 5 Wall., 479; 8 Wall., 139; 9 Wall.. 45; 13 Wall., 33; 16 Wall., 64, 182; 2 Otto, 274; 4 Otto, 125: 7 Otto, 33, 503, 531, 567; 12 Otto, 701; 1 Wood. & M., 409, 424, 428; 2 Wood. & M., 153, 471; 1 Curt., 60. 315 |